LEGAL CONCEPT OF LAND
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Definition of Land
3:2 Quic quid Plantator solosolo cedit
3:3 Incorporeal hereditament
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
Land Law or property law is designed to regulate the relationship of persons to things whether tangible or intangible, thereby providing a secure foundation for the acquisition, enjoyment and disposal of things or wealth. It describes and regulates the rights, interests and estates on land. It is therefore important to understand and define land, what it is and distinguish between land as a property and or right and other properties. Land is peculiar property because it is immovable unlike other properties, capable of being owned, it is transferable in its form, it is capable of being owned in different forms, it means that different interests may exist on land simultaneously and each interest is a right enforceable by each interest holder. E.g. A may be the owner of black acre in fee simple, he may lease the same property to B for a term of years, B in turn may mortgage his term of years to C and at the same time build a house on the land and let the property to D for a term of years, D in turn may sublet the same house to E who takes possession of the house and who in turn may grant a license to F. all the parties though have concurrent rights on the same property and these rights are enforceable in law, law therefore helps to understand create and delimits the rights on land exercisable and enforceable by the parties claiming such rights. In this unit we will define land and examine the various definitions and concepts on land.
OBJECTIVE
In this unit the objective is to examine the meaning and definition of land, the meaning and concepts. We will also discuss the concept and ambit of the maxim quicquid plantator solosolo cedit.
MAIN CONCEPT
DEFINITION OF LAND
It is generally agreed that land does not just mean the ground and its subsoil, it also includes all other objects attached to the earth surface, this includes Trees, Rocks, Buildings, and other structures wither naturally attached or constructed by man. However, land in law even extends more than this, and it includes further abstract, rights and interests like incorporeal hereditaments, right of way, easements and profits enjoyed by persons over the property or ground belonging to other persons.
Where the transaction is regulated by a statute or law, the definition used in the statute will govern the transaction, but where there is no such definition, then the definition in the interpretation Act (Cap 123 LFN 2004) is applicable. Land has been defined in the interpretation Act as “including, any building and any other thing attached to the earth or permanently fastened to anything so attached, but does not include minerals”. The definition seems to be incomplete. Because, it starts by stating that it merely includes, the others not stated in the definition is not stated, and therefore affords as many inclusion as possible. This may therefore permit addition of incorporeal hereditaments like profits, rents and easements.
Temporary structures may not qualify as land, but permanent Trees may be regarded as part of land.
The statutory definition that has adopted the common definition of land and seems to be extensive and all inclusive is the one in the property and conveyancing law 1959. Section 2 of the PCL (1959 WN) defines land to include,
“the earth surface and….everything attached to the earth otherwise known as fixtures and all chattels real. It also includes incorporeal rights like a right of way and other easements as well as profits enjoyed by one person over the ground and buildings belonging to another”.
(section 2, Cap. 100 laws of W.N. 1959)
The original section 2 of the PCL actually provides, land to include.
“land at any tenure, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments, also a rent and other incorporeal hereditaments and an easements, right, privilege, or benefit in, over, or derived from land, but not an undivided share in land”
Lloyd in his book (Yoruba Land Law) makes a distinction between land and improvements thereon under Yoruba Customary Law, while Dr. Coker (in his book family property among the Yoruba p. 32) states quite clearly that in customary law, land includes buildings thereon. Olawoye (in his book, Title to Land p. 9) describes land as, including,
“the surface of the earth, the subsoil and the airspace above it, as well as all things that are permanently attached to the soil. It includes streams and ponds. On the other land, things placed on land, whether made of the product of the soil or not, do not constitute land”
It follows therefore that while a crop or tree is planted it forms part of land, and is regarded as land, but as soon as it is cut and removed it ceases to be land. In the same vein, where a building is standing it forms part of land, but where the building is demolished it ceases to be land.
However, as we have noted above, the fixture must be permanently attached to the land to be regarded as forming part of the land; where the fixture is not of a permanent nature, then it is not land, and can be disposed off without affecting land.
- QUICQUID PLANTATOR SOLOSOLO CEDIT
From the foregoing definition of land, we can distinguish between natural and artificial content of land. Land in its natural sense and the developments like buildings and other structures including trees. The pertinent question had always been the ownership of the developments on land where the development was made by persons who are not the real owners of such land. The English principle is quicquid plantator solosolo cedit – that is whatever is affixed to the soil, belongs to the soil), is applicable in this circumstances.
The general consensuses amongst scholars is that the maxim though a Roman principle imported into English law is also applicable under customary land law. Elias (in his book Nigerian Land Law p. 174) explained thus,
“the Roman law doctrine of quicquid plantatier solosolo cedit is a principle of English, as of Nigerian property law. Like many other empirical rule of social regulation of a specific legal situation, the concept of the accession of a building or other structure to the land built upon is reasonable, covenant and universal”.
Coker (in his book Family Property among the Yoruba p.45) agrees that the maxim applies in Yoruba native law and custom when he said,
“land is by far the simplest object of property in any system of jurisprudence in this connection also, land in any application of the term includes buildings thereon. The maxim quicquid plantatier solosolo cedit which is a maxim of most legal systems, is also a part of Yoruba native law and custom”.
Olawoye, clearly agrees with the authorities that, “for the sake of commerce the law does not distinguish between the ownership of the soil and the ownership of the fixtures thereon. The principle, quicquid plantatier solosolo cedit applies”. (C.O. Olawoye 1974, Title to land, Evans Brother Ltd. )
Nwabueze, in agreeing with the above, explained the application of the principle, thus,
“it must not be supposed, however, that the maxim quicquid plantator solosolo cedit applies inflexible in all situations. Its application in any particular case depends first upon the circumstances of that case, such as the nature of the subject which it is claimed has become part of the soil by attachment thereto, and secondly, upon any statutory enactments modifying the operation of the maxim”.
Llyod however differs on this. He is of the view that Yoruba Customary Law makes a distinction between the physical land and improvements thereon. Obi also agrees with Lloyd that land under African Customary Law does not include developments thereon, (see Obi, 1963, Ibo Law of property).
Niki Tobi summarized the position of the two divergent positions thus;
“although judicial opinion on the issue is not uniform, there is more support of the opinion that the maxim applies in Nigerian Customary Law. It will be inequitable to contend otherwise. It would appear however that the maxim will not apply under customary law if improvements are made on the land with the permission of the owner of the land. In that case, customary law draws a clear distinction between the land and the improvement made thereon”.
The rule though applies under customary law, but depends on the circumstances of the case. Where a person builds a house on a land without the consent of the owner, and after the owner has pretested severally, will ultimately loose the property to the owner of the land at the suit of the owner as the maxim applies. See the case of Osho v Olayioye (1966) N.M.L.R 329, Ezoni v Ejodike (1964) All N.L.R 402.
However, under Customary Law, where the structure or building was erected with the permission of the owner of the land, the improvements remains the property of the person that constructed the building or structure in fact customary law allows the maker to continue using the building or structure as long as they remain on the land. See Adebiyi v Ogunbiyi (1965) N.M.L.R 395.
INCORPOREAL HEREDITAMENT
An incorporeal hereditament is inheritable transferable right existing on land,
“Hereditaments, then to use the largest expression are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body; incorporeal are not the object of sensation, can neither be seen nor handled; are creations of the mind and exists only in contemplation. Corporeal hereditaments consist of substantial and permanent objects”. See Blackstone commentaries vol. ii. P17.
Incorporeal hereditament is that thing which has no physical existence but capable of being owned or possessed. Land is a physical object, capable of being possessed; this could be done in terms of building, trees, crops or other physical fixtures on it. A corporeal hereditament is the thing itself which is the subject of the right; an incorporeal hereditament is not the subject of the right, but the right itself. Ownership of land, including the ramifications of its possession “an incorporeal right to the corporeal use and profit of some corporeal thing”
Therefore, incorporeal hereditaments will include rights on land though not capable of physical existence or possession but actually existing and capable of being enforced in law. Such rights like easements, profit or rents will qualify under this. Incorporeal rights can also be classified into two, those which gave right to possess them as right of a reversion or reminder and those like easements which are current enforceable rights.
CONCLUSION
Land means different things to different people. The definition given to land therefore depends on the culture and the custom of the people, the Customary Law defines land to suit the culture of the people. While, we tried to examine the definition we realized that the legislations which defined land only defined it for the purpose of such legislations and is not capable of any general application.
SUMMARY
Each legislation defined land to suit such legislation, while customary law definition is quite different from the common law, but looking at the two, we discovered that there are not much difference, the point of departure like for instance the application of the maxim quicquid plantatier solosolo cedit is the issue of whether the development is done with the consent of the owner of the property, if this is the case then, the maxim do not apply.
TUTOR MARKED ASSIGNMENT
Critically discuss the maxim quicquid plantatier solosolo cedit under customary law.
REFERENCES/FURTHER READINGS
B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu
Coker, Family Property among the Yorubas,(2nd ed)
Lloyd, (1962) Yoruba Land Law
Lloyd, 1965, Yoruba Inheritance andSuccession in Derret,ed. Studies in Law of Succession in Nigeria
Elias, British Colonial Law
Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law
Pollock, 1961, Jurisprudence and Legal Essays, London.
Omotola, 1984, Essays on the Land Use Act , Lagos University Press
Olawoye ,1970, Meaning of family property,NJCL vol 2 p300
Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,
Obi, 1963, The Ibo Law of Property.